915 F.3d 493
7th Cir.2019Background
- Edward Boliaux operated EMC Automotive and later Joliet Motors in Joliet, Illinois; he obtained floorplan financing using vehicle certificates of title as collateral.
- Beginning in 2007 Boliaux obtained duplicate certificates (claiming originals lost), used them to secure multiple loans on single vehicles, sold cars without repaying lenders, and forged lien releases to obtain further financing.
- After EMC’s collapse, Joliet Motors (incorporated by Cindy Boliaux) received installment payments from former EMC customers but did not remit them to lenders; Boliaux also engaged in check kiting in 2008–09.
- A jury convicted Boliaux of four counts of wire fraud and six counts of bank fraud; he was sentenced to 48 months’ imprisonment and three years’ supervised release.
- The district court denied Boliaux’s Rule 29 motion, finding the evidence (titles, forgeries, bank records, expert testimony) overwhelmingly sufficient, and rejected duplicity/multiplicity and expert-evidence challenges as forfeited or meritless.
- On appeal the Seventh Circuit affirmed, rejected untimely duplicity/multiplicity arguments, upheld the expert’s admissibility, and ordered an inquiry into defense counsel’s false Circuit Rule 30 certification, proposing a presumptive fine for the attorney.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for wire & bank fraud | Prosecution: false titles, forgeries, diverted proceeds, bank records, expert testimony show intent and loss risk | Boliaux: no interstate wire transmissions by him; banks didn’t directly testify to monetary losses | Evidence was sufficient; wire transmissions were interstate and foreseeable, bank records + expert showed risk of loss and intent; Rule 29 denied. |
| Wire-fraud transmissions element | Govt: payments routed across state lines advanced scheme | Boliaux: he did not personally transmit anything by wire | Court: transmissions (from Joliet routed via other states) advanced the scheme and were foreseeable consequences of his control; element satisfied. |
| Duplicity / unanimity instruction | Boliaux: jury must unanimously agree on specific means of scheme; counts are duplicitous | Govt: each count charged single scheme executed by many means; duplicity timely not raised | Forfeited under Fed. R. Crim. P. 12(b)(3); merits: no prejudicial duplicity; unanimity instruction not required. |
| Multiplicity of bank-fraud counts | Boliaux: multiple checks equal one offense, so six counts multiplicitous | Govt: counts were properly charged; multiplicity not raised pretrial | Forfeited under Rule 12(b)(3); appellate consideration denied for lack of good cause; no relief. |
| Expert witness dual-role challenge | Boliaux: Brincat (AFC employee) functioned as fact witness and expert, risking jury confusion/bias | Govt: Brincat testified only on industry practices as a Rule 702 expert | District court did not abuse discretion; expert testimony admissible; testimony stayed in bounds. |
| False Circuit Rule 30 certification in appendix | N/A (appellate court / public interest) | Boliaux’s counsel omitted district-court rulings and certified compliance falsely | Court ordered counsel to show cause why he should not be fined $1,600 and reprimanded for violating Circuit Rule 30. |
Key Cases Cited
- United States v. Washington, 184 F.3d 653 (7th Cir.) (evidence reviewed in light most favorable to prosecution)
- Richardson v. United States, 526 U.S. 813 (U.S.) (unanimity not required for alternative means of a single offense)
- United States v. Daniel, 749 F.3d 608 (7th Cir.) (wire-fraud scheme and means analysis)
- United States v. Nixon, 901 F.3d 918 (7th Cir.) (Rule 12(b)(3) pretrial objection timing and consequences)
- United States v. Je@, 908 F.3d 252 (7th Cir.) (expert vs. fact-witness risks and limits)
- United States v. Smith, 953 F.2d 1060 (7th Cir.) (treatment of false appellate certifications in criminal cases)
- In re Galvan, 92 F.3d 582 (7th Cir.) (presumptive fine for violation of Circuit Rule 30 in criminal appeals)
- United States v. Evans, 270 F.3d 1076 (7th Cir.) (sanctions and Rule 30 precedent)